What is Coparcenary| Mitakshara Coparcenary Formation and Incidents| Dayabhaga Coparcenary Formation and Incidents

What is Coparcenary in Hindu Law:

One of the most important ideas in Hindu law is the coparcenary concept. In Hindu households, it regulates the division, inheritance, and ownership of ancestral property, reflecting centuries of custom and the development of the law. A coparcener's rights and responsibilities will be covered in full in this blog post, which will begin with the definition of a coparcenary, its formation, the nature of property, unity and community of ownership, who can be a coparcener, how daughters can become coparceners, and much more.

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Definition of Coparcenary

A coparcenary is a legal concept under Hindu law, referring to a smaller subset of a Hindu joint family comprising individuals who acquire a birthright to ancestral property. Up until four generations of a common male ancestor, a coparcenary was exclusively composed of men, according to the Mitakshara School of Hindu law. However, by giving daughters equal coparcenary powers, the Hindu Succession (Amendment) Act, 2005, completely changed this long-standing system.

To summarize:

A coparcenary consists of those who have a legal right by birth in the ancestral property of the family.

It operates as a unit within the broader Hindu joint family, emphasizing collective ownership and equal inheritance rights among its members.

What is Coparcenary and Its Formation

A coparcenary is a member of a Hindu joint family, which is regulated by the Mitakshara and Dayabhaga schools of Hindu law. The notion of coparcenary is recognised by the Mitakshara school, which is practiced in most other parts of India, but not by the Dayabhaga school, which is more common in West Bengal and Assam.

Formation of a Coparcenary

Creation by Birth:

A coparcenary is formed automatically when a child is born into a Hindu joint family. Unlike a partnership, it does not require an agreement or a legal document for its creation.

Lineal Descendants:

A coparcenary is limited to four generations, including the common ancestor. For instance, a great-grandfather, grandfather, father, and son form a coparcenary. With each new birth, the number of coparceners increases, and with a death, it decreases.

Joint Nature:

A coparcenary cannot exist independently; it is part of the larger joint family framework where property is owned collectively.

Nature of Property in a Coparcenary

Property in a coparcenary is predominantly ancestral, meaning it is inherited from the common ancestor. However, not all property in a Hindu joint family qualifies as coparcenary property.

Ancestral Property:

Ancestral property refers to property inherited from a father, grandfather, or great-grandfather. The moment a child is born, they acquire a right to this property.

Self-Acquired Property:

Property that an individual earns or acquires through their efforts or business is not part of the coparcenary. However, the owner can voluntarily add it to the coparcenary pool.

Gifts and Wills:

Property gifted to an individual by a family member may or may not become coparcenary property, depending on the terms of the gift. Similarly, property inherited through a will does not automatically become coparcenary property.

Unity of Ownership and Community Ownership

Unity of Ownership:

In a coparcenary, no individual has a separate, fixed share in the property. Each coparcener has an undivided interest because the ownership is joint. The amount of a person's share, however, varies depending on whether the family grows (birth) or shrinks (death).

Community Ownership:

A coparcenary functions according to the idea of community ownership, in which the ancestral property is owned by all members combined. Until a partition occurs, no coparcener may claim sole possession of any part of the property.

Who Can Be a Coparcener in Hindu Law?

Traditionally, the concept of coparcenary was limited to male descendants under the Mitakshara school. However, significant legal reforms have expanded its ambit.

Traditional Understanding

Male Members Only:

Prior to 2005, a family could only have male coparceners. Sons, grandsons, and great-grandsons comprised the coparcenary's core.

Based on Lineage:

Membership was determined by birth within the family. Only legitimate male descendants were considered coparceners.

Exclusion of Females:

Daughters and wives were not considered coparceners and had limited rights over the ancestral property.

Legal Reforms: The Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005, brought significant changes to Hindu inheritance law, making it gender-neutral.

Daughters as Coparceners:

Daughters were awarded the same privileges as sons under the amendment. Because of her birth, a daughter is now a coparcener on her father's estate.

Equality in Rights:

Daughters can demand partition, alienate their share, and enjoy equal status as sons in the coparcenary.

Applicability:

The amendment applies retrospectively, meaning it recognizes daughters born before the enactment as coparceners, provided the partition was not finalized before September 9, 2005.

Who Can Be a Coparcener Today?

Under current Hindu law, the following individuals can be coparceners:

Sons

Daughters

Grandsons

Great-grandsons

This inclusive approach ensures equal inheritance rights irrespective of gender.

How Girls Can Become Coparceners

The status of daughters as coparceners is a result of progressive legal reforms, particularly the Hindu Succession (Amendment) Act, 2005. Here’s how girls can become coparceners:

By Birth:

It is now accepted that a daughter is a coparcener by birth. She automatically receives a portion of the family property because her rights are equal to those of a son.

Right to Partition:

A daughter can demand partition of the property and claim her rightful share, regardless of whether she is married or unmarried.

Marital Status:

In contrast to previous customs, a daughter's coparcenary privileges are unaffected by her marital status. Even after being married, she still serves in the coparcenary of her birth family.

Inheritance Rights:

If a father passes away intestate (without a will), the property is divided equally among all coparceners, including daughters.

Retrospective Effect:

Daughters born before 2005 also have coparcenary rights, provided the property’s division had not been legally finalized before the amendment’s implementation.
The recognition of daughters as coparceners has been hailed as a landmark step in promoting gender equality in India.

Rights of a Coparcener

A coparcener in Hindu law enjoys several rights that stem from their status within the joint family structure:

Right to Joint Ownership:

Every coparcener has an undivided interest in the ancestral property.

Right to Partition:

A coparcener can demand partition of the ancestral property and claim their share at any time.

Right to Alienate Their Share:

After partition, a coparcener can sell, gift, or mortgage their individual share.

Right to Survivorship:

Prior to 2005, the doctrine of survivorship applied to coparcenary property, meaning that upon the death of a coparcener, the property automatically transferred to the surviving male coparcener. Since daughters and legal heirs now also receive the deceased's portion, this notion has been weakened since 2005.

Equal Share:

All coparceners, whether male or female, have an equal share in the property.

Liabilities of a Coparcener

With rights come responsibilities. A coparcener in Hindu law has the following liabilities:

Contribution to Family Expenses:

Coparceners must contribute toward the maintenance and welfare of the joint family.

Pious Obligation:

Male coparceners traditionally had a pious obligation to repay their father’s debts unless the debts were for immoral purposes.

Sharing Losses:

In case of losses incurred in joint family property or business, all coparceners share the liability proportionately.

Partition-Related Liabilities:

During partition, debts and obligations incurred by the joint family must be settled before distribution of property.

Restrictions on Alienation:

A coparcener cannot alienate the joint property without the consent of other coparceners, ensuring collective ownership is respected.

Mitakshara Coparcenary and Its Formation

Introduction to Mitakshara Coparcenary

According to Hindu law, the Mitakshara coparcenary is a unique idea that is regulated by the legislation of the Mitakshara school. With the exception of West Bengal and Assam, most of India adheres to this school, which is one of the two main schools of Hindu law (the other being Dayabhaga).

Within a Hindu joint family, a Mitakshara coparcenary is a more limited subgroup that includes members who are born with the right to inherit ancestral property. According to Mitakshara law, "coparcenary" refers to collective ownership, in which no one person possesses a certain amount of property until it is divided.

Key Features of Mitakshara Coparcenary

Automatic Creation by Birth:

A coparcenary is naturally formed by birth in a Mitakshara joint family. Without going through the legal system, every male and female born into the family has an innate right to ancestral property.

Limited Membership:

Only four generations of male lineal descendants of a common ancestor are eligible to serve as Mitakshara coparcenaries. Daughters have been added as coparceners since the Hindu Succession (Amendment) Act, 2005 was passed.

Joint Ownership:

Coparceners own the property jointly and have an undivided interest in it. This means the property cannot be divided or alienated without mutual consent or partition.

Fluctuating Share:

Depending on family births and deaths, each coparcener's portion in the Mitakshara coparcenary varies. The percentage of current members decreases with the birth of a new member, but the shares of the surviving members rise proportionately with the death of a member.

Doctrine of Survivorship (Pre-2005):

Before the Hindu Succession (Amendment) Act of 2005, Mitakshara coparcenary was subject to the survivorship principle. When a coparcener died, the remaining male members immediately received his portion. Since daughters and legal heirs now inherit the deceased's portion, this premise has been weakened since 2005.

Formation of Mitakshara Coparcenary

A Mitakshara coparcenary is inherently tied to the joint family system, and its formation is automatic and organic. It does not require any formal process. Below are the details of how a Mitakshara coparcenary is formed:

Common Ancestor

The foundation of a Mitakshara coparcenary begins with a common male ancestor. He serves as the coparcenary's root and is the one from whom the property is inherited.
A great-grandfather is the common ancestor, for instance, if he holds ancestral property. Up to three generations of his male descendants—sons, grandsons, and great-grandsons—will join him in the coparcenary.

Birthright

The acquisition of rights by birth is a fundamental aspect of Mitakshara coparcenary. Every child born into the family automatically obtains an undivided interest in the ancestral property and becomes a coparcener.
This idea sets Mitakshara law apart from the Dayabhaga school, which holds that inherited rights only become enforceable upon the death of the property owner.

Inclusion of Daughters

Daughters born within the family are now also regarded as coparceners following the adoption of the Hindu Succession (Amendment) Act, 2005. By guaranteeing gender equality, this amendment broadened the Mitakshara coparcenary's purview.
For example, if a man has three children—two sons and one daughter—all three will now be coparceners and have equal rights to the ancestral property.

Limited Generations

Membership in a Mitakshara coparcenary is restricted to four generations:
The common ancestor (e.g., great-grandfather)
First generation: Sons
Second generation: Grandsons
Third generation: Great-grandsons
When a new member (e.g., a great-great-grandson) is born, the oldest member (e.g., the great-grandfather) ceases to be part of the coparcenary, ensuring that only four generations exist within it at any given time.

Undivided Nature

The property of a Mitakshara coparcenary remains undivided, and no single member can claim a specific share unless there is a formal partition. Until such partition occurs, the ownership remains collective, and decisions regarding the property must be made jointly.

Expansion and Reduction

The size of the Mitakshara coparcenary fluctuates with births and deaths:
Births: With the birth of a child, the number of coparceners increases, and the share of each existing member proportionally decreases.
Deaths: Upon the death of a coparcener, their share is redistributed among the surviving members (subject to modern inheritance laws).

Dayabhaga Coparcenary and Its Formation

Introduction to Dayabhaga Coparcenary

Under Hindu law, the Dayabhaga coparcenary is a novel idea that is mostly practiced in the Indian states of West Bengal and Assam. It functions on the basis of inheritance rather than birthright, which sets it apart from the Mitakshara coparcenary. According to the Dayabhaga school of law, a coparcenary is not formed at birth but rather emerges when the property holder passes away and the heirs inherit it.

Dayabhaga law was created to provide people more control over their ancestral property and to give property management greater clarity and flexibility. This school of law emphasises individual ownership and the lack of collective rights until inheritance, reflecting a more contemporary view of property rights.

Key Features of Dayabhaga Coparcenary

Formation by Inheritance:

The Dayabhaga school creates a coparcenary only when inheritance occurs, in contrast to the Mitakshara school, where coparcenary is generated by birth. Following the death of the property holder, property rights become operative.

No Joint Ownership by Birth:

According to Dayabhaga law, a family's members do not inherit their property. Until their passing, the parent or property holder has complete ownership of the property.

Equality Between Sons and Daughters:

According to the Dayabhaga school, both sons and girls are considered heirs, and when the property owner passes away, their rights to inherit are equal. Prior to the Hindu Succession (Amendment) Act of 2005, this was consistent with the gender equality concept.

Absence of Survivorship:

One of the main characteristics of the Mitakshara coparcenary, the theory of survivorship, is not applicable in Dayabhaga law. Following the death of the property holder, property is distributed equally among heirs, with no advantage given to male heirs.

Individual Autonomy:

The Dayabhaga system emphasizes individual autonomy over property. A property holder has the full right to dispose of their property during their lifetime through a will or transfer, which is not constrained by joint family ownership.

Formation of Dayabhaga Coparcenary

Based on Inheritance

The Dayabhaga coparcenary only becomes active when the common ancestor or property owner passes away. The property is now divided evenly among the legal heirs, creating a coparcenary. It does not last the property holder's lifetime, in contrast to the Mitakshara coparcenary.

No Rights During Lifetime

According to the Dayabhaga school, the property holder controls it exclusively for the duration of their life. All members of the family, including children and descendants, have no innate or inherited claim to the property.
In the event that a parent possesses ancestral property, for example, his children will not be entitled to it during his lifetime. Upon his passing, his heirs (sons and daughters) will share the property equally.

Equal Rights for Male and Female Heirs

The equal rights of sons and girls have always been acknowledged by the Dayabhaga school. The property is distributed equally to the heirs, regardless of gender, upon the death of the property holder. This characteristic closely resembles contemporary laws of succession.

No Restriction on Partition During the Holder’s Lifetime

Since the property is under the absolute control of the property holder, there can be no demand for partition during their lifetime. Only after the property devolves upon the heirs can it be divided or partitioned.

Individual Ownership After Partition

Once the property is partitioned among the heirs, each member receives their share as absolute property. Unlike in the Mitakshara coparcenary, there is no concept of joint ownership or fluctuating shares.

Absence of Generational Limits

Dayabhaga coparcenary does not restrict membership to four generations. Instead, the property devolves upon all legal heirs according to the laws of succession, without limiting it to a certain lineage.

Comparison with Mitakshara Coparcenary

Aspect	Mitakshara Coparcenary	Dayabhaga Coparcenary
Formation	By birth	By inheritance
Rights During Lifetime	Members acquire rights at birth	No rights until property holder's death
Gender Equality	Daughters included only after 2005 amendment	Sons and daughters have equal rights
Partition	Can be demanded during the property holder’s lifetime	Partition occurs only after inheritance
Doctrine of Survivorship	Applies	Does not apply

Incidents of Mitakshara and Dayabhaga Coparcenary

The term incidents in the context of Hindu coparcenary refers to the key rights, liabilities, and legal principles that define the functioning of a coparcenary under the Mitakshara and Dayabhaga schools of law. Despite discussing the idea of coparcenary, the methods and instances used by the two schools are very different. Both the Mitakshara and Dayabhaga coparcenary episodes are covered in detail here.

Incidents of Mitakshara Coparcenary

The incidents of Mitakshara coparcenary stem from its core principles of birthright, joint ownership, and community of property. The following are its primary incidents:

Right by Birth

In the Mitakshara school, a coparcener acquires a right to the ancestral property by virtue of birth.
The moment a child is born into the family, they automatically become a coparcener and gain an undivided interest in the property.

Unity of Ownership

The entire coparcenary property is owned collectively by all coparceners. No individual has an exclusive right over any specific part of the property.
The concept of unity of ownership remains until there is a partition.

Fluctuating Share

A coparcener’s share in the property is not fixed. It keeps fluctuating based on births and deaths within the family:
When a new member is born, the share of existing coparceners reduces.
When a member dies, their share is redistributed among the surviving coparceners.

Doctrine of Survivorship (Pre-2005)

The Mitakshara coparcenary used the survivorship principle prior to the Hindu Succession (Amendment) Act, 2005. Instead of going to their legal heirs, a coparcener's share immediately passed to the other coparceners upon their death.
This doctrine was modified after 2005, and the surviving coparcener's portion is now passed down to their legal heirs, including their daughters.

Right to Partition

Any coparcener has the right to demand a partition of the property at any time. Once a partition is effected, the property is divided, and each coparcener becomes the absolute owner of their respective share.

Limited Alienation of Property

A coparcener cannot sell, mortgage, or gift the joint property without the consent of the other coparceners.
However, the karta (head of the joint family) has limited powers to alienate property in cases of legal necessity or family benefit.

Women’s Exclusion (Before 2005)

Before the Hindu Succession (Amendment) Act, 2005, daughters were not recognized as coparceners in the Mitakshara coparcenary.
After 2005, daughters enjoy equal rights as sons, including the right to demand partition and claim an undivided share in the ancestral property.

Maintenance of Family

The joint property is used to maintain all family members, including dependents who are not coparceners (e.g., daughters, mothers, and other family members).

Religious Obligations

Male coparceners in Mitakshara law have a pious obligation to repay the debts of their ancestors, provided the debts are not immoral or illegal.

Incidents of Dayabhaga Coparcenary

The incidents of Dayabhaga coparcenary reflect its emphasis on inheritance rather than birthright. Its approach to property rights and liabilities is more individualistic than the Mitakshara system. Below are its key incidents:

No Right by Birth

Unlike the Mitakshara school, no member acquires a right to the ancestral property by birth.
The property remains under the absolute ownership of the head of the family during their lifetime.

Ownership Arises on Death

In the Dayabhaga system, coparcenary rights arise only after the death of the property holder. Upon death, the property is divided among the heirs according to inheritance rules.

Individual Ownership

Once the property is inherited, each heir becomes the absolute owner of their share. There is no concept of joint ownership or fluctuating shares as seen in the Mitakshara system.

Equal Rights for Sons and Daughters

The Dayabhaga school has always recognized daughters as equal heirs.
Sons and daughters inherit the property equally upon the death of the property holder. This principle aligns closely with modern inheritance laws.

Absence of Survivorship

The doctrine of survivorship, which is central to Mitakshara coparcenary, does not apply in Dayabhaga law.
If a coparcener dies, their share does not pass to the surviving members but is instead inherited by their legal heirs.

No Automatic Formation

The Dayabhaga coparcenary does not form automatically. It arises only after the property is divided among the heirs following the death of the property holder.

No Joint Family Management

Under Dayabhaga law, the property is not managed jointly by a family. Each heir receives an individual share and exercises absolute ownership over it.

Partition Only After Death

Partition of property under Dayabhaga law occurs only after the death of the property holder. There is no concept of a coparcener demanding partition during the lifetime of the head of the family.

Flexibility in Disposition of Property

The property holder under Dayabhaga law has complete freedom to dispose of their property during their lifetime through a will or transfer.
Since no one has birthrights to the property, there are no restrictions on its alienation.

Comparison of Incidents Between Mitakshara and Dayabhaga Coparcenary

Aspect	Mitakshara Coparcenary	Dayabhaga Coparcenary
Right by Birth	Yes	No
Ownership	Joint ownership	Individual ownership
Formation	Formed by birth	Formed by inheritance
Doctrine of Survivorship	Applies (pre-2005)	Does not apply
Gender Equality	Daughters included post-2005	Sons and daughters always equal heirs
Partition	Can be demanded during the holder’s lifetime	Occurs only after death
Alienation of Property	Requires consent of coparceners	Absolute discretion of the property holder